Chancery Court Upholds an Oral Agreement to Make a Will

Delaware Fiduciary Litigation Blog

Posted September 8, 2014

Richard A. McCloskey v. John A. McCloskey, et al. C.A. No. 6061-ML (September 3, 2014)

In this memorandum and opinion by Chancellor Bouchard, the Chancellor accepted the Master's recommendations that the petitioner receive the property that was orally promised to him and rejected the exceptions taken by the respondent (the petitioner's brother). This action involved a claim that the decedent (the petitioner's father) made an oral contract to give petitioner his home and a portion of his property after he died, in exchange for the petitioner taking care of him and taking care of his home.

Petitioner moved into the decedent's home shortly after the decedent divorced from his wife, the petitioner's and respondent's mother. The home was in terrible condition and needed extensive repairs throughout the decedent's life. Petitioner and his wife promised to make those repairs and to maintain the upkeep of the home, as well as care for the decedent as long as they were promised to receive the home after the decedent died. There was a lot of resentment between respondent and petitioner that stemmed from the decedent's divorce and the fact that respondent once worked for petitioner.

In the 1990s the respondent began discussing with the decedent to change his will. The previous will, the 1977 will, left petitioner the home. But recent changes to the decedent's will in the 1990s  left petitioner only a life estate in the property. It was also during this time that the decedent's mental condition began to decline and the respondent began to take control of his financial affairs. In 2003, the respondent contacted an attorney to revise the decedent's estate again, this time devising the property to the respondent, but giving the petitioner the right to live there for one year after the decedent's death. A note from the attorney's file stated "DO NOT CALL [DECEDENT] AT HOME[.] DO NOT SEND MAIL TO [DECEDENT.]" In 2005, the decedent was formally diagnosed with Alzheimer's Dementia and declared by a physician to not be competent to manage his own financial and medical affairs.

At some point between 2007 and 2010, the decedent gave the respondent a handwritten note that appeared to instruct the respondent to obtain a copy of the 1977 will and to leave the house to petitioner. The respondent conceded that this note was indicative of the decedent's intent to the leave the property to the petitioner. The respondent also made no effort to show the petitioner the note until discovery was conducted in this case.

The Chancellor discussed that the standard of review of a master's findings is de novo, for both factual and legal findings. The Chancellor, after reviewing the entire trial transcript and reviewing the entire 5-day videotaping of the trial, adopted the Master's findings of facts. The Chancellor than discussed the standards governing an oral agreement to a make a will. He stated that "[a]lthough Delaware recognizes the validity and enforceability of an oral contract to make a will, the law views those agreements with skepticism" and that the burden of proof must be clear and convincing.

The Chancellor than reiterated the elements of proving an oral agreement to make a will. That is, the petitioner must establish: "(1) the existence of an oral agreement, (2) the material terms of that agreement, (3) that he partially performed in reliance on [the decedent's] promise, suggesting a quid pro quo exchange, and (4) that it would be inequitable to deny him the benefit of his bargain." The Chancellor also reiterated the elements of establishing an oral agreement:

"(1) a promise on the part of one party to act or refrain from acting in a given  way; (2) offered to another, in a manner in which a reasonable observer would conclude the first party intended to be bound by acceptance, in exchange for; (3) some consideration flowing to the first party or to another; (4) which is unconditionally accepted by the second party in the terms of the offer, which may include (a) a verbal act of acceptance and (b) performance of the sought after act."

The Chancellor, after reviewing the entire record, came to the same conclusions as the Master: that the respondent was not credible in his versions of the facts and that the petitioner was able to establish by clear and convincing evidence that the decedent and the petitioner had an oral agreement to make a will leaving him the property.


Phillip Giordano, GF&M Law
Gordon, Fournaris & Mammarella, P.A.
William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.